The discretionary powers of the Commissioner for the South African Revenue Service

The discretionary powers of the Commissioner for the South African Revenue Service – Are they constitutional?

Abstract

The Commissioner for the South African Revenue Service has wide discretionary powers.In this article, the meaning, purpose, types, extent and exercise of these powers are examined.Do these powers promote uncertainty and/or unfairness and inconsistency, and if so, which of these powers do so? The extent of the powers given by some of the discretions not specifically subject to objection and appeal is questioned: no discretionary powers involving liability for tax should be allowed, especially not without the right to objection and appeal.

Because of the general administrative relationship between the Commissioner and the taxpayer and because exercising a discretionary power constitutes an administrative action, the constitutionality of this power was examined in terms of taxpayers’ right to just administrative action. Only discretionary powers not specifically made subject to objection and appeal are open for constitutional attack.

WHY REGISTER WITH SAIT?

Section 240A of the Tax Administration Act, 2011 (as amended) requires that all tax practitioners register with a recognized controlling body before 1 July 2013. It is a criminal offense to not register with both a recognized controlling body and SARS.